By Olatunde Cole
The revolutionary and transformative impact of digital technology on virtually every aspect of human life cannot be overemphasized. From access to high speed internet and smart mobile devices to Automated Teller Machines (ATMs), Drones and Guided Missiles, the world has found newer, faster and more effective ways of getting things done. The ubiquity of the internet, digitization and an increasingly globalised market for digital content has spawned fresh challenges in the global copyright landscape[1]. New modes of exploiting protected works have emerged and with the growing prevalence of activities like downloading, streaming and digital broadcasting, digital technology has tectonically altered the framework and balance of rights under traditional copyright law. Many countries have responded to these developments by fine-tuning their extant laws to curb new incidents of infringement and at the same time reward the creative endeavors of the right owners[2]. Unfortunately, the law in Nigeria (the Act) has remained unchanged for almost four decades, save for the amendments in 1992 and 1999 respectively. While the Act contemplates some of these technological developments, it has proven to be inadequate and anachronistic in the present digital milieu.
Digitization and Digital Technology has engendered rapid and seamless reproduction, transmission and distribution of protected material in a way and manner not envisaged by the Act. Specifically, the rights of Broadcast and communication to the public, Public performance, Reproduction and Distribution under the Act do not extend to the peculiarities of the digital environment. This unfortunately leaves the right-owners in ‘dire straits’, as they have found it overwhelmingly difficult to regulate and control unauthorized use of their work, with the attendant consequence of loss of sales, licensing and other revenue accruable to them[3]. The use of blogs and other web hosting sites to illegally distribute and transmit protected songs, movies, etc is a typical example of some of the problems that have plagued this digital era. Cognizant of this, the World Intellectual Property Organization (WIPO), adopted two treaties that have become popularly known as the WIPO Internet Treaties; The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonogram Treaty (WPPT), both of which Nigeria is a signatory to. These statutes blazed the trail and expanded the scope of exclusive rights to recognize new mediums of exploitation afforded by digital technology and laid down international norms aimed at preventing unauthorized access to and use of creative works on the internet and other digital networks[4]. Many countries of the world have since followed the lead of WIPO by either enacting new laws or reworking their extant laws to conform to the exigencies of our digital era[5]. There have also been attempts to apply the doctrine of secondary liability to Internet Service Providers (ISPs) and other facilitators like the old Naspter, Grokster and Kazaa for providing the platform for and benefiting from these infringing acts through peer-to-peer file sharing internet softwares.[6]
TOWARDS A NEW LEGAL FRAMEWORK
The slow pace of law reform is one major problem that has long bedeviled the Nigerian Legal System. With specific regard to the Copyright Act, the law is long overdue for a complete overhaul especially in view of the prevailing digital environment and the ubiquity of digital technology and content. NCC V Nwafor[7] is one of the numerous cases that have illustrated the inadequacy and shortcomings of the extant law in this digital age. There is urgent need for a new Copyright Act to reflect the level of innovative and creative activities engendered by Digital technology. The bundle of rights should be expanded to include new rights like “making available to the public” for authors, performers and producers of literary and musical works, sound recordings and cinematograph films. In addition, safe harbor and anti-circumvention provisions similar to the DMCA’s are required to address the gaps in our law. Safe harbors exempt Online Service Providers from liability in cases where they host infringing content uploaded by its users, provided that such content is expeditiously removed once the service provider is notified of the infringement. This will keep the service providers on their toes for any potential infringing material, as they will bear the brunt of liability if they fail to act timeously. The Anti-Circumvention rule on the other hand makes it illegal to circumvent technical measures that prevent access to protected materials and criminalizes the sale and distribution of products and services designed to enable circumvention of technical measures that prevent access to protected materials.
There is also need for a robust Collective Management Organization (CMO) system to forestall some of the controversies that have been elicited by the extant regime. From a standpoint of legal history, CMOs (or Collecting Societies) have acted as conduits for effective administration of protected material in their repertoire by collecting licensing fees from users and distributing these payments as royalties to the copyright owners. Since the emergence of the Societe des editeurs de musique (SACEM) in France in 1851, CMOs have evolved to become one of Copyright’s most important institutions with universally acceptable goals. Nigeria has always operated a single CMO system, save for the short period Copyright Society of Nigeria (COSON) and Musical Copyright Society of Nigeria (MCSN) operated concurrently. While the Act does not expressly preclude the existence of multiple collecting societies, it provides that the Nigerian Copyright Commission (NCC) shall approve only one CMO in respect of a particular class of copyright owners where it is satisfied such society adequately protects the interest of that class of copyright owners[8]. Before COSON had its license suspended, there were allegations of non-transparent operations, abuse of powers and integrity issues leveled against the society. A multiple CMO system will engender accountability, transparency and healthy competition on the part of the CMOs, with the resultant effect of a smoother and more efficient licensing system. In the U.S, three collecting societies service the music industry,[9] while the United Kingdom, has over twenty CMOs spread across different categories of works.[10]
Some quarters have argued that the rapidly evolving capabilities of digital technology has significantly decimated the relevance of CMOs, particularly with the advent of Digital Rights Management (DRM) technology since DRM checks illegal and transformative use of protected material and strengthens the individual licensing option[11]. While the impact of DRM cannot be ignored, there is need to provide a more robust and effective CMO system to combat some of the infringement issues of the digital environment that have proved elusive to DRM.
CONCLUSION
Over the years, the world has witnessed huge technological advances and there has been exponential increase in the use of digital technology to access and exploit protected content. Fundamentally, copyright guarantees for the right owners control over the commercial exploitation of their work. Digital technology on the other hand pose unprecedented challenges to copyright law as the relative ease at which these works can be copied significantly impinges on the capacity of these right owners to control new uses of their work. For an effective and viable licensing system in this digital age, there is clamant need for a 21st century and technologically compliant copyright legislation to address the peculiarities of the digital environment.
Olatunde Cole is a law student at the Lagos State University (LASU)
[1] Adewopo A., ‘Analysis of Copyright in Digital Music: Implications For New Media Licensing For Ringtones Under The Nigerian Copyright Act’ (2017) 8(1) The Gravitas Review of Business and Property Law, 1.
[2] See the United States of America’s Digital Millennium Copyright Act 1988, Canada’s Copyright Modernization Act 2012, India’s Copyright (Amendment) Act 2012 just to name a few.
[3] In 2016, the Nigerian Communications Minister, Adebayo Shittu stated that the country loses about $287m annually to software piracy.
[4] https://www.wipo.int/copyright/en/activities/internet_treaties.html accessed 1 December 2020.
[5] See the US Digital Performance Right in Sound Recording Act 1995 and Digital Millennium Copyright Act 1998, the European Union Copyright (Information Society) Directive 2001, Canada’s Copyright Modernization Act 2012.
[6] These attempts have proved successful in some cases. In MGM Studio Inc v Grokster Ltd, 545 U.S 913 (2005), the Supreme Court held that such peer to peer file sharing companies will be liable for copyright infringement for acts taken in the course of marketing file sharing software. Note however the decision in Sony Corp. of America v Universal City Studios Inc, 464 U.S 417 (1984) where the Supreme Court found that there was no secondary liability as long as the product was capable of “commercially significant” or “substantial non-infringing uses”.
[7] FHC/PH/87/C/2008 (Unreported)
[8] Section 39(3) of the Copyright Act Cap C28, Laws of the Federation of Nigeria, 2004.
[9] The American Society of Composers, Authors and publishers (ASCAP), Broadcast Music Inc (BMI) and Soceity of European Stage Authors and Composers (SESAC)
[10] Some of these Societies include Authors’ Licensing and Collecting Society (ALCS), Artists’ Collecting Soceity (ALS), Copyright Licensing Agency (CLA), Phonographic Performance Limited (PPL), Publishers’ Licensing Services (PLS), etc
[11] See Andrew Hutchinson, ‘Digital Rights Management: An Overview of Current Challenges and Solutions’ (2004) www.Researchgate.net/publication/228644499_Digital_rights_management-An_overview_of_current_challenges_and_solutions accessed 1 December 2020.